BEFORE THIER LORDSHIP
IBRAHIM TANKO MUHAMMAD JSC
MARY UKAEGO PETER-ODILI JSC
KUMAI BAYANG AKA'AHS JSC
AMINA ADAMU AUGIE JSC
SIDI DAUDA BAGE (Delivered the lead judgment) JSC
THURSDAY 13TH April , 2017
COUNSEL TO THE PARTIES
A.A. IBRAHIM ESQ, With him,
M.A. EBUTE Esq., for the Appellant
MRS ENEWA RITA CHRIS-GARBA With her
MRS NDIDI AKOBUNDU for the Respondent.
APPEAL
This appeal is against the judgment of the Court of Appeal, Abuja which affirmed the decision of the High Court of the Federal Capital Territory.
ISSUES OF LAW INVOLVED
COURT-Duty on to do substantial justice
FAIR HEARING- Party given opportunity to defend himself or present his case
FAIR HEARING- Constitutional nature of right to fair hearing
WORDS AND PHRASES- Definition of "shall"
SUMMARY OF FACTS OF THE CASE
This Appeal is against the judgment of Court of Appeal, Abuja Division delivered on the 7th day of June 2013, upholding the Judgment of the High Court of Federal Capital territory, Abuja.
Dissatisfied, the Appellant further appealed against the decision of the Court of Appeal to the Supreme Court.
ISSUES FOR DETERMINATION
Whether the Appellant was accorded fair hearing at the Trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the Prosecution opened her case on the 23rd day of January 2006? Grounds 2, 4 and 6.
Whether the case against the Appellant was proved beyond reasonable doubt. (The Appellant's brief was settled by A.A. Ibrahim Esq. and filed on the 31/7/2013).
HELD: (Unanimously dismissing the appeal)
- The word "shall" etymologically denotes a command tone.
PER EKO, JSC [RATIO 1]
MEANING OF THE WORD "SHALL"
The word "shall" etymologically denotes a command tone. See Okoh V. The State (2009) All FWLR (Pt. 453) 1404-1405 E-A; Ehikioya V. Commissioner of Police (1992) 4 NWLR (Pt. 233) 72-73 paragraphs G-A.
PER EKO, JSC [RATIO 2]
ON FAIR HEARING DETERMINED BY CONSTITUTIONALITY OF PROCEEDINGS
This Court has in a plethora of authorities emphasized that fair hearing as entrenched in the Constitution is based on determining or testing the Constitutionality of a trial in terms of procedure. See Ariori V. Elemo (1983) 1 SCNLR 2; Daniel Tayor Trans Ent. Ltd. V. Alhaji Busari & Anor (2005) FWLR (Pt. 286) 1689 at 1707, Ogba V. The State (1992) NWLR (PT 222) 164 at 186 paragraph C-D; Udo V. The State (1988) 1 NSCC Vol. 19 page 1163
PER EKO, JSC [RATIO 2a]
HOW A TRIAL IS ADJUDGED TO BE A FAIR TRIAL
To see that no matter the level of understanding of the observer as to the compliance to the principle, it is ascertained by the impression of a reasonable person who was present at the trial, who could from his observation hold that justice has been done in the case. See Ishiyaku Mohammed V. Kano Native Authority (1968) 1 ALL NLR 424; Kaigama V. Namanai (1997) 3 NWLR (Pt. 496) 549 at 566; Rasaki Ariori V. Elemo (1983) 1 SC 13 at 59
PER EKO, JSC [RATIO 3]
DUTY OF COURT TO DO SUBSTANTIAL JUSTICE
Members of this Court are not judicial technicians and the Court is not a workshop of technical justice. The need to do substantial justice and avoid delving into the error of technicalities is well settled. This principle has been rehashed in a long line of authorities, for example: National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A.F.C) V. Johnson (2007) 49 W.R.N Pages 169-170 where Peter Odili JCA (as he then was) opined as follows:
"... The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd. V. Access Bank (Nig.) Plc (2002) 7 NWLR (PT. 766) 447 at 476-477.
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits."
See also Ajakaiye V. Idehia (1994) 8 NWLR (Pt. 364) 504, Artra Ind. Ltd V. NBCI (1997) 1 NWLR. (PT. 483) 574, Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46, Benson V. Nigeria Agip Co. Ltd (1981) 5 S.C 1
PER EKO, JSC [RATIO 4]
ON WHEN A PARTY WAIVES HIS RIGHT TO FAIR HEARING
See the case of Ogunsanya V. State (2011) 12 NWLR (Pt.1261), page 401 at 429 where this Court held thus:
"Once a trial Court has given a party ample opportunity to defend himself, and the party does not avail himself of that opportunity, then the party cannot complain that he was deprived of the right vested in him by Section 36(4) and (6) of the 1999 Constitution... The Appellant was given the opportunity to defend himself but he failed to seize that opportunity. In the circumstance, he cannot complain of denial of fair hearing."
PER EKO, JSC [RATIO 4a]
ON WHEN A PARTY WAIVES HIS RIGHT TO FAIR HEARING
Right to fair hearing can be waived. Thus, where a Court has given every opportunity to a party to be heard but that party decides not to utilize it, he will be deemed to have waived the right, hence he cannot be heard to complain that his right to fair hearing was breached. This rule applies equally to an accused person refusing in a criminal trial to utilize the opportunity of fair hearing given to him. See Ariori V. Elemo (1983) 1 SCNLR 1; First Bank of Nigeria Plc. V. T. S. A. (supra); Olufeagba V. Abdul Raheem (2010) All FWLR (Pt. 512) 1033 at 1019: Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 418-419
PER EKO, JSC [RATIO 4b]
SATISFYING THE STANDARD OF FAIR HEARING UNDER S.36(4)(6) CFRN & S.186 CPC
I cannot but agree with the findings and conclusion of the Court below, as the principle of fair hearing is not judged within a straitjacket, rather it is taken with the accompanying circumstances including the opportunity given to the party and in this instance the appellant and out of his own volition chooses to handle things his way. If in doing so the standard required under Section 36 (4) and (6) of the 1999 Constitution and Section 186 of the Criminal Procedure Code are met then the appellant cannot turn around to complain that his right to fair hearing had been breached. See Ogunsanya V. State (2011) 12 NWLR (Pt. 1361) 401 at 429; Effiom V. State (1995) 1 NWLR (Pt.373) 507; Uguru V. State (2002) 9 NWLR (Pt. 771) 90; Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 425
PER EKO, JSC [RATIO 5]
ATTITUDE OF SUPREME COURT TO CONCURRENT FINDINGS OF FACT
The law is that the Supreme Court will not interfere with concurrent findings of facts by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of any principle of substantive law or procedure." See Arabambi V. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 Per Onnoghen. J.S.C (P. 46. C-F)
In this case, there are two concurrent findings of facts of the lower Courts on the issue, it has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure or if the finding is/was perverse. See Ochiba V. The State (2011) 12 SC (Pt IV) P. 79 Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paragraphs F-B). See also Cameroon Airlines V. Otutuizu (2011) 12 SC (Pt III) P. 200, Olowu V. Nig. Navy (2011) 12 SC (Pt. II) P.1; Arowolo V. Olowookere & 2 Ors. (2011) 11-12 SC (Pt. II) P. 98
PER EKO, JSC [RATIO 6]
ON SERVICE OF COURT PROCESSES ON COUNSEL & DUTY OF COUNSEL TO INFORM COURT PRIOR TO HIS ABSENCE FROM COURT
Be that as it may, the settled practice is that a counsel whose fees have not been settled can lawfully refuse service of a process on him, and in that case, the litigant must personally be served with the process in question before a decision is taken against him, failing which would amount to a beach of the right of fair hearing. See Bamgboye V. University of Ilorin (1999) 6 SCNJ 295; Also, if a party changes his counsel but service of a Court process is nevertheless effected on his former counsel, the consequent proceedings based on that process are null and void for breach of the fair hearing rule, the fact that no formal notice of change of counsel has been filed notwithstanding. See FBN V. T.S.A Industries Ltd (2010) ALL FWLR (Pt. 537) 633. However, if counsel is aware of a date of adjournment but takes ill before or on that date, he should either write a letter to the Court or ask another counsel in his chambers (where he has some) to attend Court, failing which he shall not be heard to complain of beach of fair hearing if a decision is taken in his absence. See Governor of Zamfara State V. Gyalange (2013) 8 NWLR (Pt 1357) 462 at 479
PER EKO, JSC [RATIO 7]
CONSEQUENCES OF DELAYING PROCEEDINGS IN COURT
Also, any person who unduly and deliberately delays the proceedings of the Court will have himself to blame if the Court takes any adverse decision against him based on such unnecessary delay. See Chidoka V. First City Finance Ltd (2013) All FWLR (Pt. 659) 1024. Further it is pertinent to re-iterate the law that each party to any pending litigation must be vigilant and if he is not so vigilant he may deprive himself of fair hearing without remedy
PER EKO, JSC [RATIO 8]
ON INGREDIENTS TO PROVE THE OFFENCE OF CONSPIRACY
As a refreshing position, I would restate that to ground a conviction for the offence of conspiracy the essential ingredients of the offence must be established beyond reasonable doubt and they are thus;
(a) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(b) Some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement.
(c) That each of the accused persons individually participated in the conspiracy. See Obiakor V. State (2002) 6 SC (Pt. 11) 33 at 39 40.
PER EKO, JSC [RATIO 9]
ON INGREDIENTS TO PROVE THE OFFENCE OF ARMED ROBBERY
While for the offence of armed robbery, the ingredients to be proved are:
(a) That there was robbery or series of robberies.
(b) That the robbery or each of the robberies was an armed robbery.
(c) That each of the accused persons was part or had taken part in the armed robbery or robberies. See Bozin V. State (1985) 2 NWLR (Pt. 8) 465; Ikemson V. State (1989) 3 NWLR (Pt. 110) 455.
PER EKO, JSC [RATIO 10]
ON METHODS TO PROVE THE GUILT OF AN ACCUSED PERSON
In a criminal trial the guilt of the accused person for the commission of any crime can be proved by any or all the following methods;
The confessional statement of the accused person or
Circumstantial evidence,
Evidence of an eye witness.
PER EKO, JSC [RATIO 10a]
ON COURT CONVICTING AN ACCUSED ON THE SOLE EVIDENCE OF A WITNESS
As the Court below also pointed out, a Court is perfectly entitled to convict on the evidence of one witness, if his evidence is credible, admissible and it is believed and accepted by the trial Court Idiok V. State (2008) 13 NWLR (Pt. 1104) 225 SC
###### PER EKO, JSC [[RATIO 11]](#r11)
ON WHEN APPELLATE COURT MAY INTERFERE WITH FINDING OF FACTS
An appellate Court will not ordinarily interfere with its findings of fact except where it is clear that they are perverse or not supported by evidence or not arrived at as a result of a proper exercise of judicial discretion or the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or where they were reached as a result of a wrong application of some principle of substantive law or procedure Ude & Ors V. Chimbo & Ors (1998) 12 NWLR (Pt. 577) 169 SC
LIST OF STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria, 1999
Criminal Procedure Act
Criminal Procedure Code (CPC).
Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation 1990
LIST OF CASES CITED.
Abadom V. The State (1997) 1 NWLR (Pt. 479) 1 at 20-21
Abogede V. State (1995) 1 NWLR (Pt. 372) 473 at 483
Adeoye V. The State (1999) 4 SC (Pt.11) 67 at 73 - 74.
Adeyela V. Adeyeye (2010) W.R.N 42 at Ratio 12, page 70 to 71
Aigbadon V. The State (2000) SC (Pt.1) 3
Ajakaiye V. Idehia (1994) 8 NWLR (Pt. 364) 504
Akayepe V. Akayepe (2009) 11 NWLR (Pt. 1152) 217 SC.
Alabi V. The State (1993) 7 NWLR (Pt.307) 511
Anthony Igbo V. The State (1975) 9 - 11 SC 129
Arabambi V. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt 959) 1
Ariori & Ors. V. Muraimo Elemo & Ors (1983) 1 SC 13 at 24
Ariori V. Elemo (1983) 1 SCNLR 1
Arowolo V. Olowookere & 2 Ors. (2011) 11-12 SC (Pt. II) P. 98.
Artra Ind. Ltd V. NBCI (1997) 1 NWLR. (PT. 483) 574
Aruna V. The State (1990) 6 NWLR (Pt 155) 125.
Awopeju V. The State (2002) 3 MJSC 141 at 151
Azeez V. The State (1986) 2 NWLR (Pt 23) 541
Baba V. C.C.A.T.C (1991) 5 NWLR (PT 192) 388 at page 430
Baba V. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1
Bamgboye V. University of Ilorin (1999) 6 SCNJ 295;
Benson VS Nigeria Agip Co. Ltd (1981) 5 S.C 1.
Bozin V. State (1985) 2 NWLR (Pt. 8) 465
Cameroon Airlines V. Otutuizu (2011) 12 SC (Pt III) P. 200
Chidoka V. First City Finance Ltd (2013) All FWLR (Pt. 659) 1024
Chukwuma V. Federal Republic of Nigeria (2011) 13 NWLR (Pt. 1264) 391 at 425 Paragraphs G-H
Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 418-419.
Cross-River State V. Young (2014) All FWLR (Pt. 714) 40.
Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46
Daniel Tayar Trans Ent. Ltd V. Alhaji Busari & Anor. (2005) ALL FWLR (Pt. 268) 1689 at 1707
Daniel Tayor Trans Ent. Ltd. V. Alhaji Busari & Anor (2005) FWLR (PT. 286) 1689 at 1707
Dibie V. State (2005) FWLR (Pt. 259) 1995.
Diebe V. The State (2005) All FWLR (Pt.259) 1995
Effiom V. The State (1995) 1 NWLR (Pt.373) 507
Ehikioya V. Commissioner of Police (1992) 4 NWLR (Pt. 233) 72-73 paragraphs G-A
Ehikioya V. COP (1992) 4 NWLR (Pt. 233) 72-73, G-A.
Ekpeto V. Wanacho (2005) All FWLR (Pt.245) 1191
Emeka V. State (2014) 6-7 SC (Pt. 1) P. 64.
FBN V. T.S.A Industries Ltd (2010) ALL FWLR (Pt. 537) 633.
First All State Securities Ltd V. Adesoye Holdings Limited (2013) 16 NWLR (Pt. 1381) 470
First Alstate Security Ltd V. Adesoye Holdings Limited (2013) 16 NWLR (Pt. 1381) 470 at 502 Paragraphs E-G
Gbadamosi V. Dairo (2007) 1 SC (Pt 11) 151 at 172
Governor of Zamfara State V. Gyalange (2013) 8 NWLR (Pt 1357) 462 at 479.
Ibrahim V. State (1991) 5 5C 71
Idakwo V. Ejiga (2005) 48 WRN at Ratio 5, page 35 to 36.
Idiok V. State (2008) 13 NWLR (Pt. 1104) 225 SC
Ikemson V. State (1989) 3 NWLR (Pt. 110) 455.
Ishiyaku Mohammed V. Kano Native Authority (1968) 1 ALL NLR 424
Isibor V. State (2007) NWLR (Pt. 1049) 614 or 635
Isibor V. The State (2001) FWLR (Pt 78) 1100 paragraphs B-F.
Isibor V. The State (2007) NWLR (Pt. 1049) 614 at 635
Joseph Idowu V. The State (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt.680), at 48
Kaigama V. Namanai (1997) 3 NWLR (Pt. 496) 549 at 566
Kaigama V. Namnai (1997) 3 NWLR (PT 495) 549 at page 566.
Makeri Smelting Co. Ltd. V. Access Bank (Nig.) Plc (2002) 7 NWLR (PT. 766) 447 at 476-477.
Martina V. The State (1997) NWLR (Pt. 481) P.355.
Mini Lodge Ltd V. Ngei (2009) 18 NWLR (Pt 1173) 254
Mohammed V. The State (2013) All FWLR (Pt 672) 167 at 1683.
Musa V. State (2007) 11 NWLR (Pt. 1045) 202 at 234.
National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A.F.C) V. Johnson (2007) 49 W.R.N Pages 169-170
Newswatch Communication Ltd. V. Atta (2006) All FWLR (PT. 318) 580 at 600-601
Nkwuda Edamire V. The State (1996) 3 NWLR (Pt. 438) 530 at 537.
Nwosu V. The State (1998) 8 NWLR (Pt.562) 433
Obiakor V. State (2002) 6 SC (Pt. 11) 33 at 39 - 40.
Ochiba V. The State (2011) 12 SC (Pt IV) P. 79
Odosen V. The State (2007) All FWLR. pt. 356, 669 at 673
Ogba V. The State (1992) NWLR (PT 222) 164 at 186 paragraph C-D
Ogunsanya V. The State (2011) 12 NWLR (Pt 1261) 401 at 429 Paragraphs B-E, 432 Paragraphs G-H, 435 Paragraph B, 437 Paragraph C
Okoh V. State (2009) ALL FWLR (Pt. 453) 1304 -- 1405
Okosi V. Attorney General Bendel State (1989) 2 SC (Pt.1) P.126.
Olawoyin V. COP (1962) NWLR 29
Olayinka V. The State (2007) ALL FWLR (Pt. 373) 163 at 173 -174
Olowu V. Nig. Navy (2011) 12 SC (Pt. II) P.1
Olufeagba V. Abdul-Raheem (2010) All FWLR (Pt.512) 1033 at 1019
Olusanya V. The State (2001) 6 SCNJ 190 at 211-212.
Omonga V. The State (2006) 14 NWLR (Pt. 1000) 552 at 557 paragraphs F-G
Onubogu V. State (1974) SC 1
Oseni V. State (2012) SC (Pt. 11) 52 at 87
Oseni V. The State (2012) SC (Pt 11) 52 at 87.
Osuagwu V. The State (2013) 1-2 SC (PT. 1) P. 37
Patrick Ikemson & 2 Ors V. The State (1989) 3 NWLR (Pt. 110) 455 at 476 paragraph D
Paw Ngorah And Kwesi Gyan V. The King (1951) XII WACA 256.
Rasaki Ariori V. Elemo (1983) 1 SC 13 at 59.
Samuel Theophilus V. The State (1996) 1 NWLR (Pt.423) 139 at 155
Samuel Theophilus V. The State (1996) 1 NWLR (Pt. 423) page 139 at 155 paragraphs A-B
Segun Ajibade V. The State (2013) 8 NCC 221
Ude & Ors V. Chimbo & Ors (1998) 12 NWLR (Pt. 577) 169 SC.
Udo V. The State (1988) 1 NSCC Vol. 19 page 1163.
Udosen V. State (2007) ALL FWLR (Pt. 356) 669 at 673
Uguru V. State (2002) 9 NWLR (Pt. 771) 90
Utteh V. The State (1992) 23 NSCC (Pt.1) 236 at 246; (1992) 2 NWLR (Pt.223) 257 at 274.
Yaw Ngorah and Kwesi Gyan V. The King (1951) XII WACA 256
JUDGMENT
SIDI DAUDA BAGE, JSC: (Delivering the Leading Judgment)
This Appeal is against the judgment of Court of Appeal, Abuja Division (the Court below), delivered on the 7th day of June 2013, upholding the Judgment of the High Court of Federal Capital territory, Abuja (the trial Court). The trial Court in its Judgment sentenced the Appellant to life imprisonment under Section 5 of the Robbery and Firearms Act, on Count 1. And in respect of Count 2 the trial Court sentenced the Appellant to death by hanging. Dissatisfied with the Judgment of the two Courts below, the Appellant has now appealed to this Court for a reversal of the decision of the Court below. The judgment of the Trial Court and the Court below are contained on pages 81 to 100 and 204-250 of the Record of Appeal respectively.
The brief facts of the case are as follows: The Appellant was charged on the 20/11/2005 with a two count charge of conspiracy and Armed Robbery. On the 23/1/2006, the prosecution commenced its case, with PW.1, PW.2, PW.3, PW.4, PW.5 and PW.6. All the witnesses were called by the prosecution and cross-examined. On the 8/3/2007, the Appellant made a no case submission but was overruled by the trial Court on the 3/12/2007. Written addresses were filed, exchanged and adopted. The Trial Court delivered its Judgment on the 10th day of February, 2009. The Appellant appealed to the Court below. Briefs of argument were filed and exchanged accordingly. Judgment of the Court below was delivered on the 7th day of June, 2013, affirming trial Court's Judgment.
Dissatisfied with the said Judgment of the Court below, the Appellant, appealed to this Court. The Notice of Appeal is contained on page 251 of the Record of Appeal. The said Notice of Appeal filed on the 24/6/2013, contains five (5) Grounds of Appeal. From the said five grounds of Appeal, the Appellant has formulated the following two (2) issues for the determination of this appeal to wit:
"(1) Whether the Appellant was accorded fair hearing at the Trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the Prosecution opened her case on the 23rd day of January 2006? Grounds 2, 4 and 6.
(2) Whether the case against the Appellant was proved beyond reasonable doubt. (The Appellant's brief was settled by A.A. Ibrahim Esq. and filed on the 31/7/2013)."
The Amended Respondent's Brief of Argument, settled by Enewa (Mrs.) Rita - Chris Garuba of Counsel, was filed on the 11/10/2016, but deemed as properly filed on the 19/1/2017. The learned Counsel for the Respondent formulated the following two (2) issues for the determination of this appeal to wit:-
"(1) Whether the Court below was (sic) right in affirming the conviction and sentence of the Appellant on the ground that he was accorded fair hearing and there was no miscarriage of justice in the course of his trial (Grounds 2, 4 and 5).
(2) Whether the Court below was right in holding that the Respondent led credible evidence in proof of the charge against the Appellant (Grounds 1 and 3)."
A close look at the two sets of issues shows clearly that learned Counsel for the parties appear to be ad idem on the issues. They asked the same questions. I shall accordingly rely on the appellant's issues in considering this appeal. Issues 1 and 2, of the Appellant's brief shall be considered together because of their interrelationship. For clarity, issue one (1) is to wit:-
"(1) Whether the Appellant was accorded fair hearing at the Trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the prosecution opened her case on the 23rd day of January 2006? (Grounds 2, 4 and 5) and
(2) Whether the case against the Appellant was proved beyond reasonable doubt (Grounds 1 and 3)."
Learned Counsel for the Appellant observed that, every accused person in a criminal trial for an offence that attracts capital punishment must be represented by a Legal Practitioner of his choice or assigned a Counsel by the Court. Learned Counsel considered the provisions of Section 186 of the Criminal Procedure Code (CPC). The Appellant was charged, convicted and sentenced at the Trial Court and the Court of Appeal upheld the conviction and sentence in the face of the breach of the provisions of Section 186 of the Criminal Procedure Code (CPC). 1 The word "shall" etymologically denotes a command tone. See Okoh V. The State (2009) All FWLR (Pt. 453) 1404-1405 E-A; Ehikioya V. Commissioner of Police (1992) 4 NWLR (Pt. 233) 72-73 paragraphs G-A.
The failure of the trial Court to adjourn the proceedings of 23rd January 2006, taking into cognizance the nature and punishment of the offence vis-a-vis the provision of Section 186 of the Criminal Procedure Code, and Section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999, was tantamount to depriving the accused person his fundamental right of fair hearing and right to be represented by his counsel. The failure of the Trial Court to issue hearing notice against the proceedings of 23rd day of January 2006 to enable the Appellant exercise his right under Section 36(6)(b) was a fundamental error which affects the validity and goes to the root of the proceedings.
The proceedings of 22/11/2005 shows Counsel was in Court, the matter adjourned to 1/12/2005. On 1/12/2005 there was no indication as to whether there was a hearing notice. Ruling was delivered on the 14/12/2005, there was no indication that the accused was in Court or his Counsel. 2 This Court has in a plethora of authorities emphasized that fair hearing as entrenched in the Constitution is based on determining or testing the Constitutionality of a trial in terms of procedure. See Ariori V. Elemo (1983) 1 SCNLR 2; Daniel Tayor Trans Ent. Ltd. V. Alhaji Busari & Anor (2005) FWLR (Pt. 286) 1689 at 1707, Ogba V. The State (1992) NWLR (Pt. 222) 164 at 186 paragraph C-D; Udo V. The State (1988) 1 NSCC Vol. 19 page 1163.
Learned Counsel for Appellant submitted further that failure by the Court below to nullify the proceedings or at least call for a retrial to ensure the protection of the Appellant's Constitutional right to fair hearing was fatal to the proceeding. See Gbadamosi V. Dairo (2007) 1 SC (Pt. 11) 151 at 172, Mohammed V. The State (2013) All FWLR (Pt. 672) 167 at 1683.
On proof beyond reasonable doubt, Learned Appellant's Counsel submitted that in a Criminal matter the burden of proof is on the prosecution and the prosecution is to prove the case beyond reasonable doubt. See Udosen V. The State (2007) All FWLR (Pt. 356) 669 at 673. Oseni V. The State (2012) SC (Pt 11) 52 at 87. Bozin V. The State (1985) 2 NWLR (Pt. 8) 465, Isibor V. State (2007) NWLR (Pt. 1049) 614 at 635.
On the ingredients to establish the offence of armed robbery, learned Counsel submitted that the Court must look at the followings:-
"(1) That there was a robbery or series of robberies;
(2) That each robbery was an armed robbery;
(3) That the accused was one of those who took part in the armed robbery."
On stealing, constituting the offence of armed robbery to convert to one's use a movable property. See Aruna V. The State (1990) 6 NWLR (Pt 155) 125. P.W.1, PW.2 and PW.4 never established that the Appellant caused any wrongful gain to himself: The mere testimonies of prosecution witnesses that PW.1's car was snatched at gun point without tendering any document to show that the car in question existed and was a property of PW.1 is enough to create doubt in the mind of any reasonable man. Also the failure to produce the gun which PW.1 claimed was used in the course of the robbery is a fundamental error. It is settled law that for the successful proof of any crime all the ingredient(s) of the offence must be established. Where any of the elements or ingredient(s) of an offence is not proved beyond reasonable doubt the prosecution's case must fail. See Omonga V. The State (2006) 14 NWLR (Pt. 1000) 552 at 557 paragraphs F-G, Isibor V. The State (2001) FWLR (Pt 78) 1100 paragraphs B-F.
On Exhibits A1 and A2, Learned Counsel submitted that the trial Judge was in error when he observed that they are live cartridges, while Exhibits B and D are statement of the accused. As to what gun qualifies as an offensive weapon. See Okoh V. The State (2009) All FWLR (Pt. 453) at 1399 paragraphs F-G, Diebe V. The State (2005) All FWLR (Pt. 259) 1995, Olayinka V. The State (2007) All FWLR (Pt. 373) 163 at 173-174. The law is settled that, it is the use of an object and manner it was made use of that qualifies it as an offensive weapon. Again, no ballistician was called to confirm what the objects are. The statement of PW.5 is quite instructive on this fact. Also the evidence of PW.4. It is therefore erroneous for the trial Court to hold or assume that it is a "live cartridges". See Ibrahim V. The State (1991) 5 SC 71.
On proof beyond reasonable doubt, learned Counsel submitted, it is the duty of the Respondent at the trial Court to prove the guilt of the accused beyond reasonable doubt, the Court below therefore erred in upholding the decision of the trial Court in the face of several contradictions. As to what amounts to material contradiction depends on the circumstances of each case. See Onubogu V. The State (1974) 9 SC. 1, Musa V. The State (2007) 11 NWLR (Pt. 1045) 202 at page 2, 4 paragraphs E-F paragraph B. The failure of the prosecution to explain the inconsistencies on the number of bullets or cartridges that were recovered goes to the root of the prosecution. The decision of the Court below that inconsistencies are not substantial should not be allowed to stand. The confessional statement of appellant should not be allowed to stand in the face of the evidence of DW.1 that the confession was forced out of him after he had been shot in two places on the left leg. See page 33 of the record. That piece of evidence has been further collaborated by the evidence of DW 2 at pages 76-77 of the record. The defence has explained what led to Exhibit B. See Aigbadon V. The State (2000) SC (Pt. 1) 3. Learned counsel for appellant urged the Court to resolve the two (2) issues in favour of the accused person taking into consideration the whole circumstance of this case.
Responding, learned Counsel for the respondent observed that, at the time the trial commenced when the PW.1 and PW.2 testified, the Appellant was not represented by a counsel following the absence of his counsel. However, the Appellant opted and did not object to the commencement of the trial and cross-examination of the witnesses. See pages 46-49 of the printed records. The learned Counsel for the accused/appellant had at an earlier date moved the bail application of the accused so the Counsel was deemed to know the commencement date of the trial. But he rather chose to be absent from Court. See First Alstate Security Ltd V. Adesoye Holdings Limited (2013) 16 NWLR (Pt. 1381) 470 at 502 Paragraphs E-G, Ogunsanya V. The State (2011) 12 NWLR (Pt. 1261) 401 At 429 Paragraphs B-E, 432 Paragraphs G-H, 435 Paragraph B, 437 Paragraph C, Effiom V. The State (1995) 1 NWLR (Pt.373) 507, Uguru V. The State (2002) 9 NWLR (Pt. 771) 90, Chukwuma V. Federal Republic of Nigeria (2011) 13 NWLR (Pt. 1264) 391 at 425 Paragraphs G-H, Azeez V. The State (1986) 2 NWLR (Pt. 23) 541, Abogede V. The State (1995) 1 NWLR (Pt. 372) 473 at 483, Anthony Igbo V. The State (1975) 9-11 SC. 129, Paw Ngorah And Kwesi Gyan V. The King (1951) XII WACA 256. The testimonies given before the trial Court in the absence of the Appellant's defence counsel did not substantially occasion any miscarriage of justice, argued learned counsel for respondent.
The learned Counsel for the Respondent further submitted that, for the offences of Criminal conspiracy and armed robbery, contrary to Section 5 and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation 1990, the Respondent presented six (6) witnesses PW.1-PW.6 and tendered four (4) Exhibits including the confessional statement of the Appellant which was admitted in Evidence without objection. The Appellant testified in his defence and tendered one (1) Exhibit. From the evidence on record, the Respondent was able to prove beyond reasonable doubt the ingredients of the offence of conspiracy against the Appellant. The Appellant and two others carried out the robbery, it follows that there was an agreement between them to commit the offence, and he participated in the commission of the offence. There was evidence that there was robbery, that it was armed robbery, because the robbers were armed with a gun and that the Appellant took part in the robbery. The Evidence of PW.1-PW.4 were unchallenged and uncontradicted neither were they discredited under cross-examination. Their evidence was in tandem with the evidence of the Appellant as regards his presence and arrest at the scene of the crime. Exhibits A1 and A2 will qualify as firearm and offensive weapons, if the live cartridges are found to be linked to a gun, they become offensive weapons. Also a confessional statement made under caution, direct and positive is sufficient to warrant a conviction. This Court should affirm the judgment of the Court below.
The circumstance of the present appeal is quite straight, and presents no complexity. The proof of evidence before the trial Court, listed six (6) witnesses called by the prosecution to establish its case beyond reasonable doubt against the accused person/appellant. Five (5) of those witnesses were eye witnesses to the Commission of the offence for which the accused person/appellant stands charged for. The appellant was charged on two counts.
They read:
COUNT 1
"That you Darlington Eze 'M' and Tochukwu 'M' now at large all of Tasha Gwagwa, Abuja, on or about the 15/6/2005 at 20:15 hrs at Block 25 Mambola Street, Wuse Zone 2, Abuja within the Abuja Division did conspire together to commit Felony to wit Armed robbery and you thereby committed an offence contrary to Section 5 of the Robbery and Firearms (Special Provision) Act Cap 398 LFN 1990."
COUNT 2
"That you Darlington Eze 'M' 30 years, Kingsley 'M' and Tochukwu 'M' now at large on or about the 15/06/2005 at about 20:15 hrs at Block 25 Mambola Street, Wuse Zone 2, Abuja within the Abuja Judicial Division while Armed with a gun and other offensive weapon robbed one Hajiya Hajara of No.8 Mississippi Road, Maitama of her NISSAN MAXIMA METHALIC GOLD with Registration No. AT 586 BWR valued N1.2M.You thereby committed an offence contrary to Section 1(2) of the Robbery and Firearm Special Provision Act Cap 398 LFN 1990."
To succeed the prosecution must prove beyond reasonable doubt that:-
"(a) There was a robbery or series of robberies;
(b) The robbery or each robbery was armed robbery and
(c) The accused was one of those who took part in the armed robbery. See Bozin V. The State (1985) 5 SC P.106. Okosi V. Attorney General Bendel State, (1989) 2 SC (Pt.1) P.126. Martina V. The State (1997) NWLR (Pt. 481) P. 355. Osuagwu V. The State (2013) 1-2 SC (PT. 1) P. 37, Emeka V. State (2014) 6-7 SC (Pt. 1) P. 64.
In proof of the charge of armed robbery against the appellant, the prosecution called seven (7) witnesses and tendered four (4) exhibits i.e. Exhibits A1, A2, and D in evidence. Five (5) of those seven (7) witnesses for the prosecution, were all eye witnesses. The evidence produced by prosecution in proof of the offence of armed robbery against the Appellant was quite overwhelming. On the ingredients to establish the offence of armed robbery, the Appellant has not put up a defence to exonerate himself from any.
The prosecution established that, there was robbery on the date of the arrest of the Appellant. That the Appellant, and the others at large were armed. The Appellant who was arrested right at the scene of the robbery, took part in the armed robbery. The Appellant then shifted the right from the main bowl, the ingredients of the offence, to the second arena, that is the Court, for non compliance with the Rules of Procedure.
The appeal raises the issue of fair hearing bordering on the provisions of Section 186 of the Criminal Procedure Code. Both the Appellant and Respondent would seem to have concurred that beyond the act of armed robbery contrary to Section 5 and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990 under which the accused was charged was not the focal point.
The contention seems to have been narrowed down to whether or not the failure to appoint Counsel for the accused, vitiated or did not vitiate, the fairness of his trial.
The learned Counsel for the Appellant, essentially hinged on the provisions of Section 186 of the Criminal Procedure Code which states that:-
"Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence."
A coin must always have the other side. The flip side of the issue in this appeal is presented in the Respondent's brief of argument. In the 15 page document, the learned Counsel to the Respondent reasoned that the principle of fair hearing in the process of adjudication is not limited to taking of evidence only, and that it must be given or protected throughout the entire proceedings. It involves the whole proceedings. Counsel contends that the test of determining if a party has been accorded fair hearing or not is the impression of a reasonable person who was present at the trial. He cited the cases of Ishiyaku Mohammed V. Kano Native Authority (1968) 1 ALL NLR 424; Baba V. C.C.A.T.C (1991) 5 NWLR (Pt. 192) 388 at page 430 and the case of Kaigama V. Namnai (1997) 3 NWLR (Pt. 495) 549 at page 566.
The Respondent Counsel admitted that the provision of Section 186 of the Criminal Procedure Code applies, but only to the extent that, if, or where the accused was not represented by Counsel. He contended that the Appellant had a Counsel representing him. Therefore, the learned Counsel submits, the provision does not apply to him. See pages 3-5 of the Respondent's brief of arguments.
The above summarises the gravamen of the contention of the Appellant and Respondent as far as issue one is concerned. I refused to be swayed, like the Court below, that this is a case in which the trial is vitiated simply because the Appellant had no counsel and one was not appointed for him pursuant to the provisions of Section 186 of the Criminal Procedure Code. The Appellant had and maintained his Counsel from beginning to the end of the trial save that on 23rd January, 2006, when the trial began, the learned trial Judge demanded to know if the Appellant was ready to commence the hearing, which he answered in the affirmative.
The principle of fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as amended (CFRN, 1999) is for both the Appellant and Respondent. Section 36 (1) of the CFRN, 1999 provides thus:
"In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality."
In the locus classicus case of Ariori & Ors. V. Muraimo Elemo & Ors (1983) 1 SC 13 at 24 per Obaseki JSC, this Court opined that fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.
"Reasonable time", the Supreme Court held, must mean the Period of time which, in the search for justice does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done."
This position has been reiterated in the case of Idakwo V. Ejiga (2005) 48 WRN at Ratio 5, page 35 to 36. Thus the Courts or Tribunals administering justice have been enjoined to bear in mind the dictum of Bage, JCA, (as he then was) in the case of Adeyela V. Adeyeye (2010) W.R.N 42 at Ratio 12, page 70 to 71 where the Court of Appeal opined as follows:
"Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This certainly is not the reason of the Rules of Court."
The provision of the Criminal Procedure Code is intended to aid in the smooth, fair and just administration of criminal justice. It certainly does not mean to defeat the end of justice. This is because on 14/12/2005 the trial Court delivered a ruling refusing the accused person (now the Appellant) bail and instead ordered accelerated hearing of the case and then adjourned to 23/1/2006 for hearing. And when the Court convened on 23/1/2006, the accused was present in Court, but his Counsel, who had prior to this date been appearing, was absent.
The trial Court before commencing asked the Appellant the whereabouts of his Counsel. The hide and seek continued for two adjournments. When the prosecution indicated readiness to proceed, the Appellant indicated his readiness. The Appellant then proceeded to cross-examine the PW1 and PW2 extensively, and when the Defence Counsel appeared in Court, he apologized for his absence at the last adjourned date. He failed to request for the record of those proceedings to determine if he needed to recall those witnesses. He took a gamble and made a no case submission against overwhelming evidence of five eye witnesses. He now seeks to take solace in the rule of procedure under Section 186 of the Criminal Procedure Code to defeat justice. This is herculean task, without neutralizing or contradicting the evidence of witnesses before the trial Court.
3 Members of this Court are not judicial technicians and the Court is not a workshop of technical justice. The need to do substantial justice and avoid delving into the error of technicalities is well settled. This principle has been rehashed in a long line of authorities, for example: National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A.F.C) V. Johnson (2007) 49 W.R.N Pages 169-170 where Peter Odili JCA (as he then was) opined as follows:
"... The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd. V. Access Bank (Nig.) Plc (2002) 7 NWLR (PT. 766) 447 at 476-477.
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits."
See also Ajakaiye V. Idehia (1994) 8 NWLR (Pt. 364) 504, Artra Ind. Ltd V. NBCI (1997) 1 NWLR. (PT. 483) 574, Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46, Benson VS Nigeria Agip Co. Ltd (1981) 5 S.C 1.
Section 36(6)(c) of the Constitution gives a person who has been charged with a criminal offence right to defend himself by a legal practitioner and or by himself. The provision of the Criminal Procedure Code is a rule of procedure. The Appellant had elected to conduct trial by himself in line with his constitutional right, which thrives over statutory provisions and rules of procedure like the Criminal Procedure Code. 4 See the case of Ogunsanya V. State (2011) 12 NWLR (Pt. 1261), page 401 at 429 where this Court held thus:-
"Once a trial Court has given a party ample opportunity to defend himself, and the party does not avail himself of that opportunity, then the party cannot complain that he was deprived of the right vested in him by Section 36(4) and (6) of the 1999 Constitution... The Appellant was given the opportunity to defend himself but he failed to seize that opportunity. In the circumstance, he cannot complain of denial of fair hearing."
In view of the foregoing, issue one is resolved in favour of the Respondent (and, for emphasis, against the Appellant). The Appellant elected to exercise his constitutional right, as against procedural right under the Criminal Procedure Code. Despite this, all other options including recall of witnesses were not explored. It is my considered view opinion that had the trial Court failed to allow the Appellant exercise his right to defend himself in person, after electing to do so, that would have amounted to a greater breach of his constitutional right to fair hearing.
For all intents and purposes, the right conferred by a rule of procedure like the Criminal Procedure Code cannot defeat the sacrosanct right of fair hearing under the Constitution, particularly once an accused person opted to exercise the latter right, as is the case of the Appellant in this case.
ISSUE 2
"Whether the charge against the Appellant was proved beyond reasonable doubt."
The contention of the Appellant is that the Respondent has failed to discharge the burden of proving that there was a robbery incident, that the robbery incident involved the use of arms and that the Appellant actually partook in the act. The learned Counsel for the Appellant relied on the cases of Odosen V. The State (2007) All FWLR. Pt. 356, 669 at 673; Oseni V. The State (2012) SC (Pt. 1) 52 at 87; Bozin V. The State (1985) 2 NWLR (Pt. 8) at 465; Isibor V. The State (2007) NWLR (Pt. 1049) 614 at 635 and Aruna V. The State (1990) 6 NWLR (Pt. 155) at 125. See pages 10-17 of the Appellant's brief of argument.
On his part, the learned Counsel to the Respondent argued that the criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. He proceeded to summarize the evidence of PW1 to PW.6 and the tendering of four (4) exhibits including the confessional statement of the Appellant.
He submits that the confessional statement of the Appellant was free and voluntary and that it is immaterial that the Appellant subsequently resiled from his voluntary confession at trial. In support of his argument, the learned Counsel to the Respondent relied on the cases of Patrick Ikemson & 2 Ors V. The State (1989) 3 NWLR (Pt. 110) 455 at 476 paragraph D: Joseph Idowu V. The State (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt.680), at 48, Nkwuda Edamine V. The State (1996) 3 NWLR (Pt. 438) 530 at 537 paragraphs D-E; Samuel Theophilus V. The State (1996) 1 NWLR (Pt. 423) page 139 at 155 paragraphs A-B and Awopeju V. The State (2002) 3 MJSC 141 at 151. He concluded by urging this Court to resolve issue two in favour of the Respondent. See pages 7-11 of the Respondent's brief of argument.
A quick recap of the evidence at trial indicate that:-
"PW.1 Hajara Mohammed, a housewife. In her testimony before the Court, she narrated as follows:
On 15/6/2005 myself and my friend, Maryam Mohammed with my children were in the car, we went to Wuse II to visit a friend. From there I was taking Maryam and her daughter to Wuse Zone II as I dropped her at her house, I saw the accused holding a bag. I thought he was selling cards. As I looked at him properly he showed a gun to me and he said I should come down. Then one other person came through the back and he removed the key of the car. The security guards at the house saw them when the accused pointed a gun at me. As I was coming out of the car the security guard held the accused while the other person had already succeeded in driving the car away. Then police were called. The accused person were three in number, the 3rd person took the gun and run away while the accused was held and the other one left with the car. The car is a Nissan Maxima with Reg. No. AT 516 BWR FCT, The value of the car is about N700, 000.00. The incidence took place between 8:00 to 8:15 or 8:20 p.m. During cross-examination, she said the accused met her with a black bag and he pointed a gun at her. The police found two cartridges with him and he was the one holding the gun. She said one of the security men hit him on the hand and the other man carried his legs and he fell down. That was how they arrested him. She said the accused hid the gun in the bag.
PW.2 in her own testimony, she said her name is Maryam Mohammed. She lives at Wuse. She knows the accused person. She gave the following evidence:-
On 15/6/2005 around 8p.m. I was returning from a friend's house, My friend Hajiya Hajara Mohammed was driving the car with my daughter when we got home I came out of the car with my daughter and her daughter came to the front seat of the car. As I was bidding her good night. Suddenly two men came out of the flower with a bag, polythene bag we thought they were selling cards. The accused was wearing a yellow captan and the other one was wearing white captan. Just as we were wondering what they wanted they pointed a gun at us and they said we should all go back to the car, my daughter was trying to run and the accused followed her and said she should go back to the car, My friend came out of the driver's side and the other person took over.
While the other person was trying to move away with the car the accused tried to scare away anybody that comes near him while holding the gun. The security guards around noticed what was happening and they came. They were able to over power the accused and the gun fell down. They pushed him to the ground and one other person came and took the gun and he ran away. While the other person took away the car. The accused was then held and they wanted to kill him but we stopped them and we said let the police be invited to come. Some policemen on guard at the house of a Commissioner of police came and they helped us to take away the accused to the station. The car is a Nissan Maxima metallic gold Reg. No. AT516 BWR. During cross-examination she said the security guard "held the accused and police came and arrested him. The security men did not have a gun they were many they over powered the accused and the gun fell of.
PW.3, Cpl. Rabiu Dalhatu attached to the State CID FCT Police Command as an exhibit keeper:-
Through him the two live cartridges were admitted in evidence and marked as Exhibits A1 and A2.
PW.4 is Buhari Garba. His evidence was interpreted from Hausa to English and vice versa by J. Bab:-
He lives at Mambolo Street, Wuse Zone II. He is a security man. He said on 15/6/2005 in the evening around 8:00 a.m. my landlord, Hajiya Maryam came and parked her car at the gate, we heard people shouting then we came out. We heard our Madam, Hajiya Maram shouting, thief! Thief! As we came out I saw three thieves. As I reached the scene one of them pointed a gun on my face. I then raised up my hand. I did near them. Then grabbed the person holding the pistol and it fell down. As I wanted to pick the gun one of them picked the gun and he told me to release the other one or else he could shoot me. I told him I would not release him he should shoot at me. While we were struggling with the other one the 2nd person took away the car. The 3rd person took a motorcycle and followed the one who left with the car. We tied the one we arrested and we called the police. As the police came I told them to hold on. I checked his pocket and I saw three live ammunitions. We went to the station together and we left the accused there. It was the accused in the dock that I grabbed, we were two as securities. I was not alone. The name of the other security man is Kasimu Usman. The madam bag is in the car. During cross examination he said the accused was not the one who took the car but he was the one who was holding a gun. PW5. Sgt. Simon Obagwu attached to State CID FCT Command, Abuja. He works with the special Anti Robbery Squad. In his testimony he said the case of armed robbery involving the accused was transferred from Wuse Division on 17/6/2005 to State CID. And he was detailed to investigate the accused along two live cartridges and one Hajiya Hajara Mohammed as the complainant were handed over to him. In the course of his investigation he obtained the statement of the complainant. He kept the two live cartridges with the exhibit keeper and he also recorded the statement of the accused, which was admitted in evidence is Exhibit B. He identified Exhibits A1 and A2. During cross examination he said no pistol was recovered from the accused and apart from the cartridges no weapon was recovered. The defence counsel applied that the witness should write on paper which he did and same was admitted in evidence as Exhibit C.
PW.6 P.C. Balarabe Moshood attached to Wuse Division.
He works with the Crime Branch. He told the Court that on 15/6/2005 the complainant, Mrs. Majaru Mohammed came to Wuse Central Police Station with a patrol team and the suspect. They reported a case of armed robbery. It was accepted and referred to him for investigation. He obtained the statement of the complainant and that of the accused under word of caution. The said statement was admitted in evidence as Exhibit D."
The case of Segun Ajibade V. The State (2013) 8 NCC 221 as decided by this Court is instructive in this regard, being similar to the issue in this appeal. In that case, the accused elected to keep silent pursuant to the provisions of Section 287(1) of the Criminal Procedure Act which gives the accused the option of keeping silent and saying nothing where the defendant is not represented in Court. The accused elected to keep silent and says nothing on the basis of which he raised the issue of fair hearing, compared to the instant appeal where the Appellant elected to cross-examine the witness in person pursuant to his constitutional right. This Court held thus;
"In the final result, the trial Court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defense has shut itself out and will have itself to blame. The Court will not be expected to speculate on what the accused might have said if testified..
What it requires to give a party , right to be heard in the determination of any allegation made against is if such an opportunity is given and the party failed to utilise such opportunity, he could no longer be heard to complain that his right to fair hearing has been breached. See also Olusanya V. The State (2001) 6 SCNJ 190 at 211-212."
See also: Abadom V. The State (1997) 1 NWLR (Pt. 479) 1 at 20-21, Utteh V. The State (1992) 23 NSCC (Pt. 1) 236 at 246; (1992) 2 NWLR (Pt. 223) 257 at 274.
5 The law is that the Supreme Court will not interfere with concurrent findings of facts by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of any principle of substantive law or procedure." See Arabambi V. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt 959) 1 Per Onnoghen. J.S.C (P. 46. C-F)
In this case, there are two concurrent findings of facts of the lower Courts on the issue, it has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure or if the finding is/was perverse.
See Ochiba V. The State (2011) 12 SC (Pt. IV) P. 79 Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paragraphs F-B). See also Cameroon Airlines V. Otutuizu (2011) 12 SC (Pt. III) P. 200, Olowu V. Nig. Navy (2011) 12 SC (Pt. II) P.1; Arowolo V. Olowookere & 2 Ors. (2011) 11-12 SC (Pt. II) P. 98.
In concluding this Judgment, I wish to state, for the umpteenth time, the attitude of this Court has remained and will remain, except in exceptional circumstances that are obvious having regard to the facts of each case, that it will not disturb or interfere with such findings and facts as in the instant case. The judgment of the trial Court cannot, be faulted at all and the lower Court was right in affirming and endorsing same. The appellant has failed to convince me that this is a situation in which this Court should interfere. See also Mini Lodge Ltd V. Ngei (2009) 18 NWLR (Pt. 1173) 254 Per Musdapher, J.S.C (as he then was) (P.33), Paragraphs B-D). Thus, I agree with the Court below, wherein it stated on page 246 of the record of appeal as follows:-
"Thus, in the light of my discourse above, I am convinced that the prosecution led credible and cogent evidence in proof of the two offences they charged the accused/appellant. All the three essential ingredients of the offence of armed robbery which I highlighted earlier in this judgment were duly proved beyond reasonable doubt as required of them so to do under Section 138(1) of the Evidence Act. See Alabi V. The State (1993) 7 NWLR (Pt. 307) 511; Bozin V. The State (1985) 2 NWLR (pt. 8) 465, Nwosu V. The State (1998) 8 NWLR (Pt. 562) 433. This second issue is therefore also resolved against the Appellant."
It is in view of the foregoing that issue two is also resolved against the Appellant. This appeal fails in whole. This appeal lacks merit and is accordingly dismissed. The judgment of the lower Court dated 7th June 2013 is hereby affirmed. The conviction and sentences of the Appellant are hereby reconfirmed.
Delivered by IBRAHIM TANKO MUHAMMAD, JSC
I have had the privilege of reading before now the judgment just delivered by my learned brother Bage JSC. I agree with my Lord's reasoning and conclusion in dismissing the appeal. I too dismiss the appeal.
For the sake of emphasis. I think there is need to consider some of the submissions made by the learned counsel for the appellant on the issue of lack of fair hearing by the trial Court. Learned counsel correctly stated and reproduced some provisions of the law on the principles or fair hearing. He submitted that every accused person in a criminal trial for an offence that attracts Capital Punishment must be represented by a legal practitioner of his choice or assigned a counsel by the Court. He cited Section 186 of the Criminal Procedure Code (CPC). He further contends that the appellant was charged, convicted and sentenced at the trial Court and the Court of Appeal upheld the conviction and sentence in the face of the breach of the provisions of Section 186 of Criminal Procedure Code. Learned Counsel submitted that the Section is one that must be complied with at all times in so far as the trial is for Capital offence. It is not one that will be treated with levity or lightly. It is not enough when a counsel is assigned. The counsel must be present at all stages of the case in so far as the offence for which the accused is charged attracts death sentence. Learned counsel argued that the whole aim and objective of Section 186 of the Criminal Procedure Code will be completely defeated if an accused person is allowed to defend himself in a pre-emptory situation as in the instant case. He cited and relied on the case of Ehikioya V. COP (1992) 4 NWLR (Pt. 233) 72-73, G-A.
Further submission by learned counsel is that the learned Justices of the Court of Appeal erred in law by upholding the judgment of the trial Court though they found that it would be ideal for the trial Court to adjourn the matter to enable the defence counsel to appear. The failure of the trial Court to adjourn the proceedings of 23rd January, 2006 vis-a-vis the provision of Section 186 Criminal Procedure Code; the Constitution of the Federal Republic of Nigeria, 1999 and the nature of the offence and its punishment would tantamount to depriving the accused person his fundamental right to fair hearing and right to be represented by his counsel.
Now, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 186 of the Criminal Procedure Code provide, respectively as follows:
36(1) In the determination of his rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to its independence and impartiality.
S. 186 Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner, the Court shall assign a legal practitioner for his defence.
For a hearing or trial to be fair, this Court has enumerated certain basic principles which should guide the judge. They include among others, that a person/party whose right is to be affected should:-
i. be present throughout the proceedings and to hear all the evidence against him;
ii. cross-examine or otherwise confront or contradict all the witnesses that testified against him.
iii. be read before him all the documents tendered in evidence at the hearing
iv. have the nature of all the relevant material evidence, including documentary and or real evidence, prejudicial to him, disclosed to him, save in recognized exceptions.
v. know the case he has to meet at the hearing and to have adequate opportunity to prepare for his defence and
vi. give evidence by himself, call witnesses if he likes and make oral submissions either personally or through counsel of his choice.
See Baba V. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1: JSC Cross-River State V. Young (2014) All FWLR (Pt. 714) 40.
It is clear from the Record of Appeal that after the arraignment which was conducted on 14/12/2005, the trial Court adjourned for hearing to the 23rd of January, 2006. Below is what transpired on the 23/01/06:-
"23-01-2006 Muyiwa O. holds the brief of Simon Lough for the State Pros: The prosecution counsel requested that I should apply for his matter to be stand (sic) down to 12:00 noon.
Court: Case stood down to 12:00
Signed: HON JUSTICE A.M TALBA PRESIDING
JUDGE 23/1/2006
Court resumed sitting
Lough Simon for the Prosecution
Accused in Court speaks English
Court-Accd: Where is your Lawyer.
Accused: I have not seen my lawyer during the last two adjournments.
Court: Have you made effort to contact the lawyer.
Accused: No I have not made any effort to contact him.
Pros Counsel: The case is for hearing and we have two witnesses in Court
Court-Accd: Are you ready to commence the hearing of your case
Accused: Yes, I am ready
Pros. Counsel: We shall call our first witness."
It is clear also from the Record of Appeal that on the 22nd day of November, 2005, the plea of the appellant was taken by the Learned trial judge. It was the same day that the learned counsel for the appellant, in the person of one A. A. Ibrahim, moved his motion for grant of bail to the appellant. (I believe there is a mix up in the dates on which the learned trial judge signed the proceeding of that date. I am of the firm belief that it was not 20/11/05; rather, it was 22/11/05). Further, the date when Ruling on the application for bail, was initially adjourned to the 1/12/2007 (on an application which was taken on 22./11/05). Further, the date when Ruling on the application for bail, was initially adjourned to the 1/12/2007 (on an application which was taken on 22/11/2005- a period spanning over two years? and was shown to have been delivered by the learned trial judge on 14/12/2005. Thus, the date of 1/12/2007 could not also be correct. Thus, the ruling for bail must, from all intents and purposes be taken to be delivered on the 14/12/2005. It is on that 14/12/2005, when the learned trial judge adjourned the case for hearing to 23/1/2006. The intricacies involved, as I see them, are the confusion involved in misdating some of the trial Court's proceedings (though unwittingly) which perhaps, afforded the learned counsel for the appellant, who pursued the case from inception, to manoeuvre and meander in the game of hide and seek. I can confidently take it that the learned counsel for the appellant was fully aware of the date fixed by the trial Court (i.e 23/01/06) for the hearing of the case. Thus, the claim for non service of the hearing notice on that date by the learned counsel for the appellant cannot hold any water. One may even go further to ask: How did the appellant (Client to the said counsel) get to know about the date fixed for hearing? That would have been better answered by the client and his counsel. All I can see is that when the trial Court asked the appellant of the where about of his counsel the appellant replied:
"I have not seen my lawyer during the last two adjournments" I have not made effort to contact him."
There is nothing to indicate to me either, where there is a soiled relationship between the counsel and his client. 6 Be that as it may, the settled practice is that a counsel whose fees have not been settled can lawfully refuse service of a process on him, and in that case, the litigant must personally be served with the process in question before a decision is taken against him, failing which would amount to a beach of the right of fair hearing. See Bamgboye V. University of Ilorin (1999) 6 SCNJ 295; Also, if a party changes his counsel but service of a Court process is nevertheless effected on his former counsel, the consequent proceedings based on that process are null and void for breach of the fair hearing rule, the fact that no formal notice of change of counsel has been filed notwithstanding. See FBN V. T.S.A Industries Ltd (2010) ALL FWLR (Pt. 537) 633. However, if counsel is aware of a date of adjournment but takes ill before or on that date, he should either write a letter to the Court or ask another counsel in his chambers (where he has some) to attend Court, failing which he shall not be heard to complain of beach of fair hearing if a decision is taken in his absence. See Governor of Zamfara State V. Gyalange (2013) 8 NWLR (Pt. 1357) 462 at 479.
In the case on hand, there is nothing to convince the trial Court that the learned counsel for the appellant was caught up by any of the extenuating circumstances. It is the law that if a party (a counsel in this case) is embarking deliberately on dilatory or delay tactics. The Court can lawfully stop him in his tracks and take action against his interest without flouting the provisions of Section 36(1) of the Constitution. 7 Also, any person who unduly and deliberately delays the proceedings of the Court will have himself to blame if the Court takes any adverse decision against him based on such unnecessary delay. See Chidoka V. First City Finance Ltd (2013) All FWLR (Pt. 659) 1024. Further it is pertinent to re-iterate the law that each party to any pending litigation must be vigilant and if he is not so vigilant he may deprive himself of fair hearing without remedy. In the case of Ekpeto V. Wanacho (2005) All FWLR (Pt. 245) 1191, while counsel was busy in the registry filling a motion that would have saved has client's case, an adverse decision was taken in the open Court when the matter was mentioned in his absence. His clients were also not present in Court. This Court dismissed their complaint of breach of fair hearing. Kalgo, JSC (Rtd) found that the appellants counsel was not in Court at the time the motion dismissing his appeal was moved. Further that he was fully aware that the motion was fixed for hearing on the 10/2/2000 and when he came on that day to Court, he proceeded to file his motion for extension of time to file appellant's brief in the registry of the Court and by the time he came back to Court, the motion was moved by the respondent's counsel and the ruling delivered by the Court. Kalgo JSC ruled:
''When the motion was called, the appellants and their counsel were absent in Court and no explanation was offered for their absence. It was only when the appellant's counsel appeared at the end of the ruling on the motion that it was discovered that he was busy filing a motion in the Court registry when the respondents' motion was heard."
Kalgo JSC further held:
"Therefore he was not refused hearing by the Court as he voluntarily absented himself from the Court at the material time. What is more he himself admitted in his affidavit evidence that the motion and the brief he filed were not in the Hon. Justice files at the time the respondents' motion was heard. How then could the Hon. Justices know that the appellants had filed a motion for extension of time to file their brief? It is very clear therefore from the facts and circumstances of this case that the issue of fair hearing did not and could not have arisen."
Again, 4a right to fair hearing can be waived. Thus, where a Court has given every opportunity to a party to be heard but that party decides not to utilize it, he will be deemed to have waived the right, hence he cannot be heard to complain that his right to fair hearing was breached. This rule applies equally to an accused person refusing in a criminal trial to utilize the opportunity of fair hearing given to him. See Ariori V. Elemo (1983) 1 SCNLR 1; First Bank of Nigeria Plc. V. T.S.A. (supra); Olufeagba V. Abdul-Raheem (2010) All FWLR (Pt. 512) 1033 at 1019: Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 418-419.
Luckily enough in this case and the only saving situation was that the appellant was in Court on the 23/10/06 when the first two witnesses were heard. Here too, it is to be recalled that the learned trial Judge questioned the appellant about the whereabout of his counsel. He also afforded the appellant opportunity whether he could, in the absence of his counsel, proceed with the hearing of the available witnesses whereas he freely consented and the trial proceeded.
It is difficult for me to decipher why the learned counsel for the appellant was raising such dust all around the principle of fair hearing. It is not however surprising. There have been precedence. In the case of Newswatch Communication Ltd. V. Atta (2006) All FWLR (PT. 318) 580 at 600-601, Tobi, JSC (Rtd and now late) reiterated the well laid down principle:
"Counsel quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the Court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice."
Belgore, JSC, (as he then was) concurring warned that the Court is not a slave of time that must await for a party to decide when to come and present its case.
I think in this case, the trial Court did the best it could. There was no application by the appellant for adjournment to enable his counsel put-up appearance and no communication from the learned counsel for that. The doctrine of fair hearing/trial as stated by Belgore and Tobi, JJSC (with the former as he then was) in the case of Newswatch Communications Ltd. V. Attah (supra) is not a one-way traffic but two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. It is a two-edged sword to the plaintiff to be heard timeously and for the defendant to avail itself of the rights, constitutional rights extended to it by the Court to present its side of the case. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.
Permit me my Lords to state the obvious in this concluding paragraph that it will certainly amount to a breach of this rule, too, if a person is precluded from having a counsel of his choice or if a Court refuses to grant a litigant an adjournment to enable him engage a counsel of his choice. Also breach of fair hearing will be occasioned if a Court fails to rule specifically on a party's application for adjournment. Further even though a Court has discretion to grant or refuse an application for adjournment, such discretion must not be exercised in such a way as to stifle hearing of a person's case or appeal on the merits. But the rule will not be breached if counsel to the aggrieved person is truant or flippant. Also if counsel fails to object to a wrong procedure, both himself and his client cannot complain of breach of fair hearing later. But if the wrong procedure results in a suit filed under the undefended list in the matter not being heard on the merits but summary judgment being wrongly entered, a breach of fair hearing would be said to have occurred.
I really find it difficult to disagree with my learned brother, Bage, JSC in the way he resolved this appeal. I too find no merit in this appeal. I dismiss the appeal. I adopt all consequential orders made in the lead judgment.
Delivered by MARY UKAEGO PETER-ODILI, JSC
I agree completely with the judgment just delivered my learned brother, Sidi Dauda Bage JSC and to place on record my support, I shall make some remarks.
This is on appeal against the judgment of the Court of Appeal, Abuja Division delivered by Amiru Sanusi JCA (as he then was) on the 7th day of June, 2013. The Court of Appeal or Court below dismissed the appeal of the appellant against his conviction and sentence by the trial Court of the Federal Capital Territory per A. M. Talba J. for the offences of conspiracy and armed robbery contrary to Sections 5 and 1(2) of the Robbery and Firearms Special Provisions Act, 1990.
FACTS BRIEFLY STATED
The appellant was charged along with two others on a two (2) count charge of conspiracy and armed robbery contrary to Sections 5 and 1(2) Robbery and Firearm (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990. The said charges are contained at pages 3 - 4 of the printed records.
In proof of its case, the respondent (prosecution) called six (6) witnesses PW1 - PW6 and tendered in evidence four (4) Exhibits -A1, A2, B and D. PW1, PW2 and PW4 gave eye witness of what transpired at the scene of the crime and how the appellant was arrested. While PW1 and PW2 were victims of the robbery, PW6 and PW7 were the investigating police officers. See pages 46 - 63 of the printed records for the evidence of the respondent (prosecution).
Consequent upon the rejection of the appellant's no case submission by the trial Court at the close of the prosecution, the appellant testified in his defence, called one (1) witness and tendered one (1) exhibit, Exhibit C through PW5 under cross examination. See pages 71 - 77 of the printed records.
At the end of the trial, the appellant was convicted as charged and sentenced to life imprisonment for the offence of conspiracy and death for the offence of armed robbery contrary to Sections 5 and 1(2) of the Robbery and Firearms Special Provisions Act Cap 398 LFN 1990. The appeal at the Court below was dismissed hence this recourse to the Supreme Court.
A.A. Ibrahim Esq., learned counsel for the appellant on the 19th day of January, 2017 date of hearing adopted his brief of argument filed on 31/7/13 and in which were distilled two issues for determination, viz;
Whether the appellant was accorded fair hearing at the trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the prosecution opened her case on the 23rd day of January, 2006 (Grounds 2, 4, 5)
Whether the case against the appellant was proved beyond reasonable doubt (Grounds 1 and 2)
Enewa (Mrs.) Rita Chris-Garuba, learned counsel for the respondent adopted the amended respondent's brief of argument filed on the 11/10/16 and deemed filed on 19/1/17. She formulated two issues for determination which are as follows:
Whether the Court below was right in affirming the conviction and sentence of the appellant on the ground that he was accorded fair hearing and there was no miscarriage of justice in the course of his trial. (Grounds 2, 4 and 5.)
Whether the Court below was right in holding that the respondent led credible and cogent evidence in proof of the charge against the appellant (Grounds 1 and 3).
The two differently couched issues on either side are really asking the same question and so for convenience I shall make use of those issues formulated by the appellant.
ISSUE NO 1
Whether the appellant was accorded fair hearing at the trial Court when particularly there was a failure to comply with Section 186 of the Criminal Code when the prosecution opened her case on the 23rd day of January, 2006.
A.A. Ibrahim Esq. of counsel for the appellant contended that every accused person in a criminal trial for an offence that attracts capital punishment must be represented by a legal practitioner of his choice or assigned a counsel by the Court in keeping with Section 186 of the Criminal Procedure Code. That it is not enough when a counsel is assigned, the counsel must be present at all stages of the case in so far as the offence attracts the capital punishment. He cited Okoh V. State (2009) ALL FWLR (Pt. 453) 1304 - 1405, Ehikioya V. COP (1992) 4 NWLR (Pt. 233) 72 - 73.
That the trial Court not adjourning the proceedings of 23rd January, 2006 in the light of the nature of the offence charge within the ambit of Section 186 of the CPC and Section 36(6) of the Constitution of the Federation was a deprivation of the fundamental right to fair hearing of the accused and his right to be represented by his counsel. He said it is a right that cannot be waived no matter the circumstance. He referred to Ariori V. Elenoh (1983) 1 SCNLR 2; Daniel Tayar Trans Ent. Ltd V. Alhaji Busari & Anor. (2005) ALL FWLR (Pt. 268) 1689 at 1707; Ogba V. State (1992) 2 NWLR (Pt. 222) 164 at 186.
Mrs. Chris-Garuba of counsel for the respondent submitted that indeed the right to fair hearing of an accused is not limited to taking of evidence only as it must be given or protected throughout the entire proceedings. That Section 186 of the CPC is mandatory. She stated that what happened on the 23rd January, 2006, that the accused had the option to ask for an adjournment in the absence of his counsel and the counsel was aware of the commencement of the trial and so being absent was out of choice of the counsel and the accused. That in the circumstance, accused cannot complain of a want of fair hearing. She cited Ogunsanya V. State (2011) 12 NWLR (Pt. 1261) 401 at 429: Olawoyin V. COP (1962) NWLR 29; Effiom V. State (1995) 1 NWLR (Pt. 373) 507; Uguru V. State (2002) 9 NWLR (Pt. 771) 90 etc.
Learned counsel for the respondent further contended that assuming without conceding that the appellant was not accorded fair hearing when PW1 and PW2 testified in the absence of defence counsel and their testimonies are expunged, that the testimony and eye witness evidence of PW4 would suffice to ground a conviction. Azeez V. The State (1986) 2 NWLR (Pt. 23) 541: Abogede V. State (1995) 1 NWLR (Pt. 372) 473 at 483; Anthony Igbo V. The State (1975) 9 - 11 SC 129; Yaw Ngorah and Kwesi Gyan V. The King (1951) XII WACA 256.
The opposing positions on either side is on the part of the appellant that the trial was conducted in total violation of the right to fair hearing in breach of Section 186 Criminal Procedure Code (CPC) and Section 36 of the 1999 Constitution. On the other part, respondent disagrees with that viewpoint on the ground that the circumstances of what transpired did not support the alleged infraction of the appellant's right to fair hearing.
Of a truth, the concept or principle of fair hearing in the process of adjudication and administration of justice is fundamental and so entrenched in the Constitution of the Federal Republic of Nigeria and the common law. The concept is all the more pre-eminent that once it is established that there is a breach thereof the entire proceeding no matter how well conduced comes to naught. I rely on Adeoye V. The State (1999) 4 SC (Pt. 11) 67 at 73 - 74.
In the process of ensuring that the fair hearing right of a party and in this instance the appellant is protected, the Court is enjoined to ensure that the right to fair hearing is not limited to the taking of evidence but must be seen to have been complied with throughout the entire proceedings and at every stage. 2a To see that no matter the level of understanding of the observer as to the compliance to the principle, it is ascertained by the impression of a reasonable person who was present at the trial, who could from his observation hold that justice has been done in the case. See Ishiyaku Mohammed V. Kano Native Authority (1968) 1 ALL NLR 424; Kaigama V. Namanai (1997) 3 NWLR (Pt. 496) 549 at 566; Rasaki Ariori V. Elemo (1983) 1 SC 13 at 59.
To show the importance ascribed to the principle of fair hearing, when the offences attract capital punishment the position of the law impels that the accused must be represented by a legal practitioner and where he cannot afford that service the Court shall assign one to represent him. This is to ensure that the stipulations under Section 186 of the CPC are met. I shall quote the Section hereunder thus:
Section 186 "Where a person is accused of an offence punishable with death, if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence."
It needs be said that being a human setting no two cases are identical though they could be on all fours or similar and so each case must be viewed in context. The Court below doing exactly that had this to say at pages 226 - 228 of the record thus:
"On the issue of fair hearing it is settled law that any accused person standing trial is entitled to fair hearing in view of the provisions of Section 36(6)(b) of the 1999 Constitution. The principle of fair hearing should and must be strictly adhered to by Courts. It is trite law, that right to counsel should be strictly adhered to especially in trial of capital offence. As I said supra, this instant case the accused/appellant all along had a counsel of his choice. The only snag is that the lower Court commenced the trial of his case in the absence of that his counsel. Two witnesses were heard in the absence of the defence counsel, but when the counsel subsequently appeared he chose not to recall the witnesses who had testified earlier in his absence for further cross-examination for reason best known to him."
Amiru Sanusi JCA (as he then was) continued as follows:
"As I said above, the two witnesses had been examined by the accused himself. To my mind, since other witnesses including some eye witnesses testified in the presence of the defence counsel hence he cannot be said to have been occasioned any miscarriage of justice, simply because PWs 1 and 2 testified in the absence of his counsel. The appellant counsel also did not inform this Court in which way or manner substantial miscarriage of justice was occasioned to him. A similar scenario happened in the case of Yaw Ngorah and Kwesi Gyan V. The King (1951) XII WACA 256 and the West African Court of Appeal held that there was substance on the ground that the Court should have stopped the trial of separate counsel to be assigned, but the fact that the trial continued without counsel had occasioned no substantial miscarriage of justice and the conviction of both appellant were still affirmed on appeal."
The learned jurist at the Court below continued thus:
"In the instant case after the testimonies of the two witnesses, trial continued with a counsel representing the appellant. There is no display of miscarriage of justice by the appellant's counsel in present case to warrant the discharge and acquittal of the appellant. I also do not share the reasoning of the learned respondents counsel that this is an example of a case where retrial order shall be made. I therefore unhesitatingly reject the call for retrial order made by the learned respondent's counsel. In this regard the first issue for determination is resolved against the appellant."
4b I cannot but agree with the findings and conclusion of the Court below, as the principle of fair hearing is not judged within a straitjacket, rather it is taken with the accompanying circumstances including the opportunity given to the party and in this instance the appellant and out of his own volition chooses to handle things his way. If in doing so the standard required under Section 36 (4) and (6) of the 1999 Constitution and Section 186 of the Criminal Procedure Code are met then the appellant cannot turn around to complain that his right to fair hearing had been breached. See Ogunsanya V. State (2011) 12 NWLR (Pt. 1361) 401 at 429; Effiom V. State (1995) 1 NWLR (Pt. 373) 507; Uguru V. State (2002) 9 NWLR (Pt. 771) 90; Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at 425.
Indeed, I am at one with learned counsel for the respondent that the appellant has not shown how the fact that PW1 and PW2 testified in the absence of defence counsel occasioned any miscarriage of justice. Six witnesses testified for the prosecution and even if the evidence of PW1 and PW2 are expunged, the eye witness account of the PW4 is sufficient to ground a conviction.
It would be illuminating to revisit the record and quote the evidence proffered by the said PW4, Buhari Garba who gave a graphic narration of what happened as he witnessed the incident and at every point of the transaction and the role he played.
PW4: "Adult, Male, Muslim, affirms. Speaks Hausa Language. Court Clerk, J. Baba affirms to interpret from English to Hausa and vice versa. My name is Buhari Garba. I live at Zone 2 Wuse Mambolo Street. I am security. I know why I am in Court. I am in Court to give evidence. I know the accused in the dock. On 15 day of June 2005 in the evening around 8:00 pm my landlord, Hajiya Maryam came and parked her car at the gate. We heard people shouting then we came out. We heard our madam, Hajiya Maryam shouting thief! Thief!. As we came out I saw three thieves. As I reached the scene one of then pointed a gun on my face. I then raised up my hand. I did not go near them. I then grabbed the person holding the pistol and it fell down. As I wanted to pick the gun one of them picked the gun and he told me to release the other one or else he would shoot me. I told him I would not release him, he should shoot at me. While we were struggling with the other one the 2nd person took away the car. The 3rd person took a motorcycle and followed the one who left with the car. We tied the one we arrested and we called the police. As the police came I told them to hold on. I checked his pocket and I saw three live ammunition. We went to the station together and we left the accused there. It was the accused in the dock that I grabbed. We were two as securities, I was not alone. The name of the other security is Kasimu Usman. The madam bag is in the car."
He was cross-examined and he stated thus:
CROSS EXAMINATION
"I gave a statement to the police. I gave my statement in Hausa language. I never gave my statement in English. I recovered three bullets and I gave them to the police. I am not a ballistician. Even the police told me it was a bullet. I did say the armed robbers were three. One left with the car, the other took a motorcycle as a passenger and left. The cyclist is not a thief. The cyclist just came around where they were shouting thief. He never knew what happened. I say the bag madam left in the car. The accused was not the one who took the car but he was the one who was holding gun. The accused did not take the bag but he held the gun. I can disarm the accused even if he is holding a gun. I cannot identify my signature."
"Re-Examination: None."
For a fact the findings and conclusion of the Court below on this matter of whether or not the right to fair hearing accorded the appellant was in compliance with the law which that Court answered affirmatively is without fault and borne out of record.
This Issue 1 is resolved agonist the appellant.
Issue No 2
Whether the case against the appellant was proved beyond reasonable doubt.
Learned counsel for the appellant stated that in a criminal matter the burden of proof is on the prosecution and the prosecution has to prove the case beyond reasonable doubt. That the respondent to discharge the burden must prove the following ingredients in the offence of robbery that is that there was robbery or series of robberies. That each robbery was an armed robbery and that accused was one of those who took part in the armed robbery. He cited: Udosen V. State (2007) ALL FWLR (Pt. 356) 669 at 673:Oseni V. State (2012) SC (Pt. 11) 52 at 87; Bozin V. State (1985) 2 NWLR (Pt. 8) 465; Isibor V. State (2007) NWLR (Pt. 1049) 614 or 635; Aruna V. The State (1990) 6 NWLR (Pt. 155) 125.
It was submitted for the appellant that the respondent had not established these ingredients of the offence of robbery as required by law, that is beyond reasonable doubt. He cited Omonga V. State (2006) 14 NWLR (Pt. 1000) 552; Olayinka V. The State (2007) ALL FWLR (Pt. 373) 163 at 173 -174: Okoh V. State (2009) ALL FWLR (Pt. 453) 1369; Dibie V. State (2005) FWLR (Pt. 259) 1995.
That the trial Court was in error when it assumed that the exhibits were live cartridges. He cited Ibrahim V. State (1991) 5 5C 71; Onubogu V. State (1974) SC 1; Musa V. State (2007) 11 NWLR (Pt. 1045) 202.
For the respondent, learned counsel said the ingredients of the offences of conspiracy and armed robbery were established beyond reasonable doubt. He referred to Obiakor V. State (2002) 6 SC (Pt. 11) 33 at 39-40; Ikemson V. State (1989) 3 NWLR (Pt. 110) 455.
That the confessional statement of the appellant even without corroboration was sufficient to warrant his conviction. She relied on Joseph Idowu V. The State (2000) 7 SC 50 at 62: Nkwuda Edamire V. The State (1996) 3 NWLR (Pt. 438) 530 at 537.
That the contradictions appellant is harping on are not material enough to create doubts in the mind of the judge to be resolved in favour of the accused. She referred to Samuel Theophilus v The State (1996) 1 NWLR (Pt. 423) 139 at 155; Patrick Ikemson & 2 Ors V. The State (1989) 3 NWLR (Pt. 110) 456 at 479: Awopeju V. The State (2002) 3 MJSC 141 at 151.
The appellants' stance is that the prosecution has not proved the case against the appellant beyond reasonable doubt and that there were material contradictions that affected the substance of the case.
The respondent declines the posture taken by the appellant who asserted strongly that the offences of criminal conspiracy and armed robbery contrary to Section 5 and 1(2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of the Federation 1990 were proved beyond reasonable doubt.
8 As a refreshing position, I would restate that to ground a conviction for the offence of conspiracy the essential ingredients of the offence must be established beyond reasonable doubt and they are thus;
(d) An agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(e) Some act besides the agreement was done by one or more of the accused persons in furtherance of the agreement.
(f) That each of the accused persons individually participated in the conspiracy. See Obiakor V. State (2002) 6 SC (Pt. 11) 33 at 39 - 40.
9 While for the offence of armed robbery, the ingredients to be proved are:
(d) That there was robbery or series of robberies.
(e) That the robbery or each of the robberies was an armed robbery.
(f) That each of the accused persons was part or had taken part in the armed robbery or robberies. See
Bozin V. State (1985) 2 NWLR (Pt. 8) 465; Ikemson V. State (1989) 3 NWLR (Pt. 110) 455.
10 In a criminal trial the guilt of the accused person for the commission of any crime can be proved by any or all the following methods;
The confessional statement of the accused person or
Circumstantial evidence,
Evidence of an eye witness.
The Court below had this to say at pages 242 - 246 thus;
"I am of the view that there are other evidence outside the confessional statement are true and also other pieces of evidence duly corroborated the confessional statement. Prominent among these pieces of evidence adduced at the trial are, the recovery of the cartridges on the person or the accused by PW4, the identity of the accused person revealed by PW2 and PW1 and the eye witness account of the PW4 who arrested the accused/appellant at the scene of crime. Putting the revelations in the confessional statement side by side with other oral testimonies of the witnesses called by the prosecution, it will be correct to say that the confession was duly corroborated and that it is consistent with other facts which were duly ascertained and proved.
Also, from the circumstance and facts of the case, the accused/appellant certainly had the opportunity of committing the offence along with his other co-accused now at large. In applying the above tests to the facts of the case, the evidence adduced by PW1, PW2 and PW4 and relate it to the confessional statement, I am convinced that the confessional statement is material and substantially corroborated by the evidence adduced by the prosecution.
After a deep and sober consideration of the appellant's confessional statement in question, I am of the view that the confession did satisfy all the test stated above and the accused is liable to be convicted even on his own confession alone.
Another issue raised by the appellant which is worthy of consideration in this judgment is the alleged inconsistencies and contradictions, in the evidence adduced by the prosecution as raised by the appellants' learned counsel in his brief.
One of these alleged inconsistencies or contradictions relate to the disparity in the time of the commission of the offence. For instance, while PW1 told the Court the robbery took place between 8.00pm and 8.15pm but PW2 stated that it occurred between 7.30pm and 8.00pm. Another example raised by the appellant's counsel is that PW1 stated under cross-examination that the police recovered two cartridges from the accused whereas PW3 -the IPO, told the Court that one Sgt. Utagwa told him that they recovered them from the suspect while PW4 gave different version on that point".
In respect to the contradictions which learned counsel for the appellant called the Court's attention to, that should produce doubt, reasonable enough to destroy the case of the prosecution the Court below stated as follows:
"It is my considered view, that these alleged contradictions or inconsistencies are not material at all. To my mind minor contradictions in testimony in evidence led by a party will not lead to reversal of decision of a trial in an appeal. Such contradiction or inconsistencies must be substantial or material ones. Also material contradiction often depends on circumstance of each case. See Onubogu V. State (1974) SC 1; Musa V. State (2007) 11 NWLR (Pt. 1045) 202 at 234.
The disparities in the evidence of the prosecution are in my view minor disparities that usually exist in testimonies of witnesses who are ever ready and willing to tell the truth, after all in normal affair or sphere of life, human memories differ or cannot have same storing capacity and retrieval ability. Such minor disparities are therefore often and commonly found or do exist in testimonies given by different human being or witnesses given as account of what they have seen, witnessed or perceived in a given event.
I therefore hold that the contradictions are minor and not substantial or material ones as would inform this Court to upturn the decision of the lower/trial Court.
Thus, in the light of my discourse above, I am convinced that the prosecution led credible and cogent evidence in proof of the two offences they charged the accused/appellant. All the three essential ingredients of the offence of armed robbery which I highlighted earlier in this judgment were duly proved beyond reasonable doubt as required of them so to do under Section 138(1) of the Evidence Act. See Alabi V. State (1993) 7 NWLR (Pt. 307) 511; Bozin V. The State (1985) 2 NWLR (Pt. 8) 465: Nwosu V. State (1998) 8 NWLR (Pt. 562) 433."
The findings and conclusion of the Court of Appeal tailored along those of the trial Court and supported by the evidence before the trial Court. There is nothing upon which a deviation from those findings and conclusion can be based, there being no perversity, miscarriage of justice or wrong application of law, procedural or substantive. Therefore I see nothing else to do in the light of the foregoing and the well reasoned lead judgment than to dismiss this appeal which I dismiss as I abide by the consequential orders made.
Delivered by KUMAI BAYANG AKA'AHS, JSC
This appeal was heard on 19/01/2019 and adjourned to Friday, 14/04/2017 for judgment. The delivery of judgment had to be brought forward by a day to 13/4/2017 because the 14/04/2017 is Good Friday which is a public holiday.
The appellant was arraigned before the Federal Capital Territory High Court, Abuja on a two count charge of conspiracy to commit a felony and armed robbery. He was convicted and sentenced to life imprisonment for the offence of conspiracy while the offence of armed robbery secured him the death sentence. His appeal to the Court of Appeal was dismissed and he has appealed to this Court. He raised two issues for determination namely:-
(1) Whether the appellant was accorded fair hearing at the trial Court when particularly there was a failure to comply with S. 186 of the Criminal Procedure Code when prosecution opened her case on the 23rd day of January, 2000 (Grounds 2, 4 and 5.)
(2) Whether the case against the appellant was proved beyond reasonable doubt? (Grounds 1 and 2).
My learned brother, Bage JSC obliged me before now with his lead judgment where he found that there was no merit in the appeal and accordingly dismissed it. I entirely agree with him.
The recourse by the appellant to alleging lack of fair hearing on account of the failure by the prosecution to comply with Section 186 of the Criminal Procedure Code amounts to raising a false alarm. It is the case of a man crying wolf when there is no wolf in sight. Section 186 CPC provides:-
''186 Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence".
The records show that the appellant was represented by counsel A. A. Ibrahim on 22/11/2005 who moved a motion praying the Court to admit the appellant to bail. The case was adjourned to 1/12/2007 for ruling. It seems there is an error in the date when the application for bail was adjourned for ruling because the ruling was delivered on 14/12/2005. Although learned counsel representing the appellant was not present in Court when he took his plea on the 22/11/2005; on 23/1/2006 the trial Judge commenced taking evidence from the prosecution witnesses but before the witnesses gave their testimonies, the trial Judge enquired about the appellant's counsel and whether the appellant was ready for the trial. The record at page 46 is reproduced as follows:-
"Lough Simon for the Prosecution Accused in Court speaks English
Court - Accd: Where is your lawyer?
Accused: I have not seen my lawyer during the last two adjournments.
Court: Have you made effort to contact the lawyer.
Accused: No I have not made any effort to contact him.
Pros. Counsel: The case is for hearing and we have two witnesses in Court.
Court - Accd: Are you ready to commence the hearing of your case
Accused: Yes, I am ready."
The trial Court then proceeded to take the evidence of two of the prosecution's witnesses namely PW1 and PW2. It is on account of this that the appellant is complaining about lack of fair hearing.
Learned counsel for the appellant has argued that the failure by the trial Court to put appellant's counsel on notice by issuing a hearing notice to the effect that hearing of the prosecution's case was to commence on 23/1/2006 was a fundamental error which rendered the proceedings a nullity.
Learned counsel for the respondent argued that the accused had an option to ask for an adjournment to enable his lawyer appear, but he opted to conduct the proceedings by himself. He pointed out that learned counsel for the accused had at an earlier date moved an application for bail of the accused, and submitted that the counsel was deemed to know the commencement date of the trial but chose to be absent from Court. He further submitted by relying on First All State Securities Ltd V. Adesoye Holdings Limited (2013) 16 NWLR (Pt. 1381) 470 that the fair hearing principle entrenched in Section 33 of the 1979 Constitution (now Section 36 of the 1999 Constitution) is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. He said the principle is not available to a party who sets a trap in the litigation process against the Court and accuses the Court of wrong doing even when such wrong doing is as a matter of fact, propelled or instigated by the party through his counsel. Learned counsel further contended that Section 36(6)(c) of the 1999 Constitution gives a person charged with a criminal offence the right, not only to be defended by a legal practitioner of his choice but also by himself in person. Since the accused person opted and indeed conducted the Proceedings of 23/1//2006 by himself even though he already had a counsel representing him he cannot later be heard to complain of want of fair hearing. He likened the situation to what happened in Ogunsanya V. State (2011) 12 NWLR (Pt. 1261) 401 where this Court held thus:
"Once a trial Court has given a party ample opportunity to defend himself, and the party does not avail himself of that opportunity, then the party cannot complain that he was deprived of the right vested in him by S. 36(4) and (6) of the 1999 Constitution (and, in this case, even S. 186 of the Criminal Procedure Code). In the instant case, the appellant was given the opportunity to defend himself but he failed to use that opportunity. In the circumstance he could not complain of fair hearing."
Learned counsel went further to submit that for a trial to be nullified on the basis of want of fair hearing there must be a miscarriage of justice in the process.
I entirely agree with the submissions of learned counsel for the respondent. The accused who was not represented by counsel on 23/1/2006 was at liberty to inform the Court that he could not proceed with his defence in the absence of his counsel or he could have intimated the Court that the counsel he engaged earlier to apply for his bail was no longer available.
In such a situation, the trial Court would be bound to grant him an adjournment or provide a counsel for his defence since one of the counts carried the death sentence. He did not ask for adjournment; instead he informed the Court he was ready to proceed with his defence. When counsel appeared in Court on 13/2/2006 after PW1 and PW2 had testified, he could have applied for PW1 and PW2 to be recalled for the purpose of cross-examination. This was not done. If such an application was made and the Court refused to accede to the request, the appellant would then have every justification to allege denial of fair hearing.
Even without the evidence of PW1 and PW2, the prosecution called PW4 who also gave an eye witness account of how the appellant pointed a gun at him but he grabbed him and the gun fell off. He then over powered him. He was assisted by another security man to tie the appellant before calling the police. The appellant was arrested at the scene of the crime. In his testimony as DW1, he confirmed that he was arrested and taken to the Police station where he was accused of being one of the people who stole one woman's car.
There was ample evidence which linked the appellant with the offence of armed robbery for which he was rightly convicted and sentenced to death by hanging. It is for these reasons and the ones given by my learned brother, Bage JSC that I found no merit in the appeal and accordingly dismissed it.
Appeal is dismissed
Delivered by AMINA ADAMU AUGIE, JSC
I have had a preview of the lead Judgment delivered by my learned brother Bage, JSC, and I agree with him that the Appeal lacks merit.
He addressed all the issues raised, and I will only highlight some of the points made. The Appellant and two others were arraigned at the High Court of the Federal Capital Territory (trial Court) on a two count Charge of conspiracy and armed robbery. Trial commenced on 23/1/2006 and the record of the proceedings at the trial Court reads-
Lough Simon for the Prosecution
Accused in Court speaks English
Court - Accd: Where is your lawyer?
Accused: I have not seen my lawyer during the last two adjournments.
Court: Have you made effort to contact the lawyer.
Accused: No I have not made any effort to contact him.
Pros.: The case is for hearing and we have two witnesses in Court.
Court - Accd: Are you ready to commence the hearing of your case
Accused: Yes, I am ready."
Thereafter, the Prosecution called the two witnesses, PW1 and PW2, who testified, and were also cross-examined by the Appellant himself. On 13/2/2006, A. Ibrahim appeared for the Appellant and apologized for his absence on 23/1/2006; saying he was not informed of that date. The trial proceeded with the Prosecution calling four more witnesses.
After his no-case submission was overruled by the trial Court, the Appellant testified in his defence as DW1, and called one witness.
At the end of the day, the learned trial Judge, Talba, J., held that the Prosecution proved its case beyond reasonable doubt, and found him guilty as charged and convicted and sentenced him to life imprisonment for conspiracy and death by hanging for armed robbery. He appealed to the Court below, and one of the issues he raised was --
Whether there was fair hearing and the trial was not a nullity, in view of the fact that (he) was compelled to defend himself in an offence involving capital punishment and without adequate preparation.
In resolving this issue against him, the Court below pointed out what happened at the trial Court on 23/1/2006, and further observed that-
The proceedings subsequently continued in the presence of both counsel- Even before the defence counsel made a no-case submission he never deemed it proper to recall the first two witnesses, who testified in his absence... About four eye-witnesses testified at the trial and 1st and 2nd Prosecution witness were only some or part of the eye-witness called by the Prosecution. As rightly pointed out by the learned trial Judge, he relied on the testimonies of 1st, 2nd and 4th Prosecution witness, who were all eye-witnesses. It goes without saying that the trial Court did not solely rely on the evidence of 1st and 2nd Prosecution witnesses in basing its conviction of the Appellant. Therefore, even without the testimonies of PW1 and PW2 or even if same is expunged; the trial Court's conclusion that the Prosecution had proved its case against the Appellant would not have been different at all. This is so because a Court can convict an accused of capital offences even on the testimony of only one or single witness, especially an eye-witness, depending on the weight or veracity of such evidence."
Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing five Grounds of Appeal. He has formulated two issues for determination in his brief and the first issues is as follows-
Whether the Appellant was accorded fair hearing at the trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the Prosecution opened her case on the 23rd of January, 2006?
Let me just say that it is not every time an Accused Person cries lack of lair hearing that a Court will succumb and give him what he wants; an acquittal on a platter of gold. In this case, the Court below made a very valid point that throws the Appellant's grouse out of the window; even if the evidence of PW1 and PW2 that was taken in the absence of defence counsel is expunged, there is PW4 - another eye-witness.
10a As the Court below also pointed out, a Court is perfectly entitled to convict on the evidence of one witness, if his evidence is credible, admissible and it is believed and accepted by the trial Court - Idiok V. State (2008) 13 NWLR (Pt. 1104) 225 SC.
11 An appellate Court will not ordinarily interfere with its findings of fact except where it is clear that they are perverse or not supported by evidence or not arrived at as a result of a proper exercise of judicial discretion or the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or where they were reached as a result of a wrong application of some principle of substantive law or procedure Ude & Ors V. Chimbo & Ors (1998) 12 NWLR (Pt. 577) 169 SC.
So, in the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusions, an appellate Court must show utmost restraint and reject any temptation to interfere with well-considered findings made by a trial Court - Ude V. Chimbo (supra).
In this case, the Appellant is faced with an uphill task because this Appeal is predicated on the question of facts requiring proof by evidence, and the attitude of this Court on concurrent findings of facts by the two lower Courts is that it will not interfere with the findings except he can show any of the flaws or errors afore-stated - that there was a miscarriage of justice or a serious violation of some principles of substantive law or procedure or that the findings do not flow from the evidence adduced by the parties or that the findings are perverse- See Akayepe V. Akayepe (2009) 11 NWLR (Pt. 1152) 217 SC.
In this case, the Appellant has not met any of these requirements to justify any interference with the concurrent findings of the High Court of the Federal Capital Territory and the Court of Appeal.
Thus, I also dismiss this Appeal, and affirm the decision of the Court below upholding his conviction and sentence by the trial Court.